The International Criminal Court's lack of jurisdictional power prevents it from achieving its raison d'etre - prosecuting the perpetrators of humanity's worst crimes.
The ICC, the court set up to have jurisdiction over crimes against humanity, war crimes and genocide when states are either unwilling or unable to prosecute the perpetrators, theoretically has the power to hold the individuals accountable for these crimes and impose deserved punishment on them.
During a visit from officials of the International Criminal Court (ICC) recently, Russia vowed to fully cooperate with the court regarding the investigation of alleged crimes committed in South Ossetia's armed conflict in 2008.
Last week, Tomas Ojea Quintana, UN special investigator on human rights in Burma, accused the Burmese government of systematic violations that might encompass crimes against humanity. While it is still a long shot, there are many people hoping to see Burmese leader Sr General Than Shwe and his entourage charged for these crimes by the ICC.
But don't hold your breath.
Russia and Burma, as states not party to the ICC, are not legally bound to the court, so don't expect them to extradite individuals to be possibly charged for crimes committed.
In the court's short history, this has already become a recurring theme. Today, 110 countries are members of the court, slightly more than half of the world's states. Notable non-signatories are China, Thailand, Burma, the US and Sudan.
Omar Hassan Al-Bashir, the incumbent Sudanese president, under whose reign more than 200,000 people have died and more than 2 million have been displaced during the ongoing civil war, has been accused of war crimes and crimes against humanity by the ICC, which issued a warrant for his arrest in February 2009.
More than a year after the warrant was issued, Al-Bashir has yet to be brought to trial, and as president of Sudan, he is unlikely to extradite himself to The Hague anytime soon.
The ICC will therefore remain inefficient until allegiance to the Rome Statute, the ICC's treaty, becomes a necessary condition attached to UN membership. Evidently, this would not guarantee the capture for trial of every charged fugitive, but because state parties to the ICC are legally obliged to fully cooperate with the court in prosecuting individuals, it would certainly help.
While the court's treaty stipulates that the Security Council can order the arrest of an individual in any state under its Chapter Seven powers, the majority needed for such an action is almost impossible to attain, as cases are divisive and non-signatory states populate the Security Council. The warrant for Al-Bashir was deplored by China and Russia, both permanent members of the Security Council, so relying on the latter to counterbalance a lack of jurisdictional power is not a viable permanent solution.
As crimes of this nature often originate inside governments, the belief that every country will one day relinquish its sovereignty over justice to a supranational organ, even if only for a limited list of crimes, is nothing short of an illusion.
The court's ability to bring individuals to justice and hold them accountable for their crimes thus rests on a voluntary submissiveness to the court by states, and as we all know, any solution based on the wilful cooperation of states is rarely a recipe for success.
The court's plight is symptomatic of a deeper reality. As long as states remain the supreme actors on the world stage, the ICC and UN organs alike will ultimately remain powerless and mass criminals will be able to avoid prosecution within the safety of their borders.
The creation of the court was still a great leap forward in ridding the world of atrocious crimes, and it has had its share of success. The trial of Radovan Karadzic, the former leader of the Bosnian Serbs responsible for the slaughter of 8,000 Bosnian Muslims during the civil war in the 1990s, began on March 1 after a manhunt that lasted more than a decade.
An important concept in law is retributive justice, based on the moral belief that the gravity of the crime should dictate the severity of the punishment. However, the lack of jurisdictional power suffered by the ICC means the court would most likely fail to follow the concept of retributive justice, as the perpetrators of humanity's worst crimes - genocide, crimes against humanity and war crimes - often remain unpunished.
